Bushwhacked!

Oregon won't let pot-smokers behind the wheel.

Two months ago, Joel Foster and his business partner, Rick Schneider, took advantage of one of the first warm days of spring by heading to a favorite fishing hole on the Wilson River near the Oregon Coast. The pair of independent contractors had started out early that morning, hiking from Schneider's house near Rockaway Beach with rods, sandwiches and two joints. As the fishing slowed in the afternoon, Foster and Schneider decided to try their hand at catching a buzz.

"We were just sitting there smoking a joint," recalls Foster, 44, "fishing and having a good time." But the relaxing day assumed a dismal cast when Oregon State Trooper Lalo Guerra crashed through the bushes. The officer, who had been spying on the pair, demanded to see their fishing licenses. Satisfied that they were angling legally, he then confronted them about the funny cigarettes he'd seen them smoking. Foster and Schneider admitted that they had consumed about a joint-and-a-half and handed over the remainder of the marijuana. Because the contents of the blunt were less than an ounce, the cop gave each a citation carrying a $585 fine and instructed them to either pay the ticket by mail or to fight it in court.

Thinking that his punishment ended with the fine, Foster paid up and wrote it off as a loss. Schneider, however, decided to go to court, hoping to get the fine reduced. Instead, Neil Lemery, a Tillamook County justice of the peace, informed Schneider that, in addition to the fine (which he wouldn't reduce), the two men would face a mandatory six-month suspension of their driver's licenses.

Although Schneider argued that he and Foster were not even in the vicinity of a vehicle when they were caught with the marijuana, Lemery remained unmoved.

In early May, the two men each received a letter from the state Driver and Motor Vehicle Services, stating that in addition to the license suspension, they could not apply for hardship permits. Such permits are commonly issued to drivers convicted of motor-vehicle offenses, granting offenders with suspended licenses the right to drive to and from work. However, the 1991 Legislature passed a law prohibiting hardship permits for drug offenders--even those such as Foster and Schneider whose pot violations had nothing to do with driving.

"The ironic thing is, you can get drunk, smash up your car and get back on the road," says Foster. "I know guys who have gotten three DUIIs and are still legally driving [with a hardship permit]."

Over the past three years, DMV records show, the state has issued 3,333 hardship permits to convicted drunk drivers. During that same period, the state suspended 6,227 drug offenders' licenses. None of those drivers could apply for a hardship permit.

The Drug Offenders Driving Privileges Suspension Act of 1991 enjoyed large bipartisan support at the time and passed with only two dissenting votes in the House. One naysayer was Carl Hosticka, who then represented south Eugene. Now a Metro councilor, Hosticka says he still believes that the law is inappropriate. "This appears to be an overly hard reaction to minor drug offenses--without much opportunity for recourse," he says. "It's punishing people more than once." Foster and Schneider's situation, he says, "is the kind of thing we were anticipating. This punitive response doesn't do anyone any good--and, in fact, has the potential for harm."

Even one of the bill's co-sponsors now questions the law. "We were trying to find alternative methods to sanction people," says Kevin Mannix, the GOP gubernatorial candidate who, in 1991, was a Democratic state rep from Salem. "However, it serves no public purpose to take away someone's license for a minor drug offense. It just doesn't make sense."

According to the legal community, the suspension of a driver's license after a pot bust is the exception rather than the rule, but it does happen.

"When the Legislature writes a law that says 'shall suspend the license,' that means that I have to do it--and I will," says Lemery.

For Foster, that means asking family members and friends to shuttle him to and from jobs until November, a hassle he expects will cut his business in half. "I'm doing everything I can just to hold on for the next six months," he says.

In addition, the suspension will almost certainly cause Foster's auto-insurance costs to spike--and probably result in the cancellation of his policy, according to Jeff Aeschliman of Farmers Insurance. Foster's attorney, James Glover, says it makes no sense to hurt his client's ability to work just because he smoked a joint on a hiking trail. "In this case, enforcing this law is outrageous, and may be unconstitutional, because it interferes with his right to travel and his right to make a living," says Glover, a Portland criminal-defense litigator. Foster is currently considering challenging the law in court--all of which seems a long way from the Wilson River.

"All I had was a joint with really crappy leaf," he says. "If I'd known this was going to happen, I would have thrown it in the river."